Does proscribing discrimination on the basis of religion itself discriminate against religion? In Christian Legal Society v. Martinez, the Supreme Court, in a 5-4 decision, recently dodged this question, holding instead that a Law School’s anti-discrimination policy that apparently required a student organization to admit or allow any student to participate in its activities (“an all-comers policy’) did not violate the first amendment rights of a student organization that sought to exclude students on the basis of religion and sexual orientation.

But, because there was some dispute as to whether the Law School actually had an “all-comers policy” or whether its anti-discrimination requirements were limited to prohibiting discrimination “on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation,” as set forth in the Law School’s written policy, the question of whether this latter type of anti-discrimination measure would survive constitutional scrutiny was very much on the minds of the Justices. Justice Alito, writing for the four dissenting Justices, in fact, opined that the Law School’s written policy violated the first amendment on grounds that it discriminated against religious expression. As Justice Alito argued, “the policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimination.”

At one level, of course, Justice Alito’s observation is accurate. The Nondiscrimination Policy ostensibly allows secular groups to discriminate in favor of students who share their beliefs while it presumably prohibits religious organizations from doing the same. But Justice Alito’s solution exempting religious organizations from Nondiscrimination Policy requirements creates inequalities as well. After all, the Nondiscrimination policy also prevents secular groups from discriminating on the basis of religion – a pro-choice group for example could not deny membership to a person who held religious objections to abortion. Why should religious-based discrimination be allowed but secular-based discrimination prohibited? Similarly, the Nondiscrimination Policy prevents a race-based organization, for example, from excluding a person of a different race just as much as it bars a religious organization from discriminating on the basis of religion. Why should only religious-based discrimination be allowed? Seen in this light, then, Justice Alito’s argument is one for special exemption for religion and not one for equal treatment. As such, his opinion raises the question of whether an exemption for a religious organization from a neutral law of general applicability can be required under the Speech Clause, even as similar claims for exemption are no longer cognizable since Employment Division v. Smith under the Free Exercise Clause.

This article will attempt to unpack the claim for special exemption for religious organizations advanced in Justice Alito’s opinion. As noted, this claim, although advanced under free speech auspices, closely parallels the free exercise claim for exemption rejected in Smith. Accordingly, this article will also discuss the more general proposition of whether claims for religious exemptions from neutral laws, having been rejected in the Free Exercise context, should be recognized under the Speech Clause.